SELECTED PRE-INDICTMENT CRIMINAL PROCEDURES
OFFICIAL GEORGIA CODE: TITLE 17 (OGC 17-___)
[Current through 2003 Session]
17-4-62. [Warrantless arrest]
In every case of an arrest without a warrant, the person arresting shall, without
delay, convey the offender before the most convenient judicial officer authorized
to receive an affidavit and issue a warrant as provided for in Code Section
17-4-40. No such imprisonment shall be legal beyond a reasonable time allowed
for this purpose; and any person who is not brought before such judicial officer
within 48 hours of arrest shall be released.
17-6-1. [Bail]
(a) The following offenses are bailable only before a judge of the superior
court:
(1) Treason;
(2) Murder;
(3) Rape;
(4) Aggravated sodomy;
(5) Armed robbery;
(6) Aircraft hijacking and hijacking a motor vehicle;
(7) Aggravated child molestation;
(8) Aggravated sexual battery;
(9) Manufacturing, distributing, delivering, dispensing, administering, or selling
any controlled substance classified under Code Section 16-13-25 as Schedule
I or under Code Section 16-13-26 as Schedule II;
(10) Violating Code Section 16-13-31, relating to trafficking in cocaine, methamphetamine,
or marijuana;
(11) Kidnapping, arson, aggravated assault, or burglary if the person, at the
time of the alleged kidnapping, arson, aggravated assault, or burglary, had
previously been convicted of, was on probation or parole with respect to, or
was on bail for kidnapping, arson, aggravated assault, burglary, or one or more
of the offenses listed in paragraphs (1) through (10) of this subsection; and
(12) Aggravated stalking.
(b)(1) All offenses not included in subsection (a) of this Code section are
bailable by a court of inquiry. Except as provided in subsection (g) of this
Code section, at no time, either before a court of inquiry, when indicted or
accused, after a motion for new trial is made, or while an appeal is pending,
shall any person charged with a misdemeanor be refused bail.
(2) Except as otherwise provided in this chapter:
(A) A person charged with violating Code Section 40-6-391 whose alcohol concentration
at the time of arrest, as determined by any method authorized by law, violates
that provided in paragraph (5) of subsection (a) of Code Section 40-6-391 may
be detained for a period of time up to six hours after booking and prior to
being released on bail or on recognizance; and
(B) When an arrest is made by a law enforcement officer without a warrant upon
an act of family violence pursuant to Code Section 17-4-20, the person charged
with the offense shall not be eligible for bail prior to the arresting officer
or some other law enforcement officer taking the arrested person before a judicial
officer pursuant to Code Section 17-4-21.
(3)(A) Notwithstanding any other provision of law, a judge of a court of inquiry
may, as a condition of bail or other pretrial release of a person who is charged
with violating Code Section 16-5-90 or 16-5-91, prohibit the defendant from
entering or remaining present at the victim´s school, place of employment,
or other specified places at times when the victim is present or intentionally
following such person.
(B) If the evidence shows that the defendant has previously violated the conditions
of pretrial release or probation or parole which arose out of a violation of
Code Section 16-5-90 or 16-5-91, the judge of a court of inquiry may impose
such restrictions on the defendant which may be necessary to deter further stalking
of the victim, including but not limited to denying bail or pretrial release.
(c)(1) In the event a person is detained in a facility other than a municipal
jail for an offense which is bailable only before a judge of the superior court,
as provided in subsection (a) of this Code section, and a hearing is held pursuant
to Code Section 17-4-26 or 17-4-62, the presiding judicial officer shall notify
the superior court in writing within 48 hours that the arrested person is being
held without bail. If the detained person has not already petitioned for bail
as provided in subsection (d) of this Code section, the superior court shall
notify the district attorney and shall set a date for a hearing on the issue
of bail within 30 days after receipt of such notice.
(2) In the event a person is detained in a municipal jail for an offense which
is bailable only before a judge of the superior court as provided in subsection
(a) of this Code section for a period of 30 days, the municipal court shall
notify the superior court in writing within 48 hours that the arrested person
has been held for such time without bail. If the detained person has not already
petitioned for bail as provided in subsection (d) of this Code section, the
superior court shall notify the district attorney and set a date for a hearing
on the issue of bail within 30 days after receipt of such notice.
(3) Notice sent to the superior court pursuant to paragraph (1) or (2) of this
subsection shall include any incident reports and criminal history reports relevant
to the detention of such person.
(d) A person charged with any offense which is bailable only before a judge
of the superior court as provided in subsection (a) of this Code section may
petition the superior court requesting that such person be released on bail.
The court shall notify the district attorney and set a date for a hearing within
ten days after receipt of such petition.
(e) A court shall be authorized to release a person on bail if the court finds
that the person:
(1) Poses no significant risk of fleeing from the jurisdiction of the court
or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, to the community, or
to any property in the community;
(3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing
the administration of justice.
However, if the person is charged with a serious violent felony and has already
been convicted of a serious violent felony, or of an offense under the laws
of any other state or of the United States which offense if committed in this
state would be a serious violent felony, there shall be a rebuttable presumption
that no condition or combination of conditions will reasonably assure the appearance
of the person as required or assure the safety of any other person or the community.
As used in this subsection, the term 'serious violent felony' means a serious
violent felony as defined in Code Section 17-10-6.1.
(f)(1) Except as provided in subsection (a) of this Code section or as otherwise
provided in this subsection, the judge of any court of inquiry may by written
order establish a schedule of bails and unless otherwise ordered by the judge
of any court, a person charged with committing any offense shall be released
from custody upon posting bail as fixed in the schedule.
(2) For offenses involving an act of family violence, as defined in Code Section
19-13-1, the schedule of bails provided for in paragraph (1) of this subsection
shall require increased bail and shall include a listing of specific conditions
which shall include, but not be limited to, having no contact of any kind or
character with the victim or any member of the victim´s family or household,
not physically abusing or threatening to physically abuse the victim, the immediate
enrollment in and participation in domestic violence counseling, substance abuse
therapy, or other therapeutic requirements.
(3) For offenses involving an act of family violence, the judge shall determine
whether the schedule of bails and one or more of its specific conditions shall
be used, except that any offense involving an act of family violence and serious
injury to the victim shall be bailable only before a judge when the judge or
the arresting officer is of the opinion that the danger of further violence
to or harassment or intimidation of the victim is such as to make it desirable
that the consideration of the imposition of additional conditions as authorized
in this Code section should be made. Upon setting bail in any case involving
family violence, the judge shall give particular consideration to the exigencies
of the case at hand and shall impose any specific conditions as he or she may
deem necessary. As used in this Code section, the term 'serious injury' means
bodily harm capable of being perceived by a person other than the victim and
may include, but is not limited to, substantially blackened eyes, substantially
swollen lips or other facial or body parts, substantial bruises to body parts,
fractured bones, or permanent disfigurements and wounds inflicted by deadly
weapons or any other objects which, when used offensively against a person,
are capable of causing serious bodily injury.
(4) If probable cause is shown that the offense charged is in furtherance of
a pattern of criminal gang activity as defined by Code Section 16-15-3, the
court shall require increased bail and shall include as a condition of bail
or pretrial release that the defendant shall not have contact of any kind or
character with any other member or associate of a criminal street gang and that
the defendant shall not have contact of any kind or character with the victim
or any member of the victim´s family or household.
(5) For offenses involving violations of Code Section 40-6-393, bail or other
release from custody shall be set by a judge on an individual basis and not
a schedule of bails pursuant to this Code section.
(g) No appeal bond shall be granted to any person who has been convicted of
murder, rape, aggravated sodomy, armed robbery, aggravated child molestation,
kidnapping, trafficking in cocaine or marijuana, aggravated stalking, or aircraft
hijacking and who has been sentenced to serve a period of incarceration of seven
years or more. The granting of an appeal bond to a person who has been convicted
of any other felony offense or of any misdemeanor offense involving an act of
family violence as defined in Code Section 19-13-1, or of any offense delineated
as a high and aggravated misdemeanor or of any offense set forth in Code Section
40-6-391, shall be in the discretion of the convicting court. Appeal bonds shall
terminate when the right of appeal terminates, and such bonds shall not be effective
as to any petition or application for writ of certiorari unless the court in
which the petition or application is filed so specifies.
(h) Except in cases in which life imprisonment or the death penalty may be imposed,
a judge of the superior court by written order may delegate the authority provided
for in this Code section to any judge of any court of inquiry within such superior
court judge´s circuit. However, such authority may not be exercised outside
the county in which said judge of the court of inquiry was appointed or elected.
The written order delegating such authority shall be valid for a period of one
year, but may be revoked by the superior court judge issuing such order at any
time prior to the end of that one-year period.
(i) As used in this Code section, the term 'bail' shall include the releasing
of a person on such person´s own recognizance.
(j) For all persons who have been authorized by law or the court to be released
on bail, sheriffs and constables shall accept such bail; provided, however,
that the sureties tendered and offered on the bond are approved by the sheriff
of the county in which the offense was committed.
17-6-2. [Bail-misdemeanors]
(a)(1) In all cases wherein a licensed driver of this state has been arrested,
incarcerated, and charged with a violation of state law and where said violation
is a misdemeanor, the sheriff of the county wherein the violation occurred shall
be authorized, unless otherwise ordered by a judicial officer, after the individual
has been incarcerated for not less than five days, to accept that individualīs
driverīs license as collateral for any bail which has been set in the case,
up to and including the amount of $1,000.00, provided such license is not under
suspension or has not expired or been revoked.
(2) The individual posting a license as collateral pursuant to this subsection
shall execute an acknowledgment and agreement between the individual and the
State of Georgia as bond wherein the individual agrees to appear in court to
answer the charges made against the individual and acknowledges that failure
to appear in court when the case is scheduled for hearing, trial, or plea shall
result in a forfeiture of the individualīs license through suspension by operation
of law effective upon the date of the individualīs scheduled appearance. The
individual shall also be notified that failure to appear in court as required
may result in criminal prosecution for bail jumping as provided in Code Section
16-10-51. After execution of the agreement, except as otherwise provided by
law, the license shall be returned to the individual and the original agreement
shall be delivered to the prosecuting attorney for filing with the accusation,
citation, or dismissal. Whenever an individual has been charged with a violation
of Code Section 40-6-391, relating to driving under the influence of alcohol
or drugs, then the provisions of Code Section 40-5-67 shall apply.
(3) A failure to appear by the individual who has been charged with a misdemeanor
offense and who posted that individualīs license as bail pursuant to this subsection
shall, by operation of law, cause that individualīs license to be suspended
by the Department of Motor Vehicle Safety effective immediately, and the clerk
of the court within five days after that failure to appear shall forward a copy
of the agreement to the Department of Motor Vehicle Safety which shall enter
the suspension upon the individualīs driver history record. The posting of a
license as provided in this subsection shall also be considered as bail for
the purposes of Code Section 16-10-51. Where the original court date has been
continued by the judge, clerk, or other officer of the court and there has been
actual notice given to the defendant in open court or in writing by a court
official or officer of the court or by mailing such notice to the defendantīs
last known address, then the provisions of this paragraph shall apply to the
new court appearance date.
(4) A license suspended pursuant to this subsection shall only be reinstated
when the individual shall pay to the Department of Motor Vehicle Safety a restoration
fee of $25.00 together with a certified notice from the clerk of the originating
court that the case has either been disposed of or has been rescheduled and
a deposit of sufficient collateral approved by the sheriff of the county wherein
the charges were made in an amount to satisfy the original bail amount has been
paid. The court wherein the charges are pending shall be authorized to require
payment of costs by the defendant in an amount not to exceed $100.00 to reschedule
the case.
(5) Upon the trial of any individual charged with the offense of driving with
a suspended license where such license was suspended as provided in this subsection,
a copy of the acknowledgment and agreement executed by the individual together
with certification by the clerk of the court of the individualīs failure to
appear shall be prima-facie evidence of actual notice to the individual that
the individualīs license was suspended.
(b) In all other misdemeanor cases, sheriffs and constables shall accept bail
in such reasonable amount as may be just and fair for any person or persons
charged with a misdemeanor, provided that the sureties tendered and offered
on the bond are approved by the sheriff in the county where the offense was
committed.
17-6-12. [Recognizance bond]
(a) In addition to other laws regarding the release of an accused person, the
judge of any court having jurisdiction over a person charged with committing
an offense against the criminal laws of this state shall have authority, in
his sound discretion and in appropriate cases, to authorize the release of the
person upon his own recognizance only.
(b) Upon the failure of a person released on his own recognizance only to appear
for trial, if the release is not otherwise conditioned by the court, the court
may summarily issue an order for his arrest which shall be enforced as in cases
of forfeited bonds.
17-6-13. [Subsequent bail]
Except as otherwise provided in this chapter, each person who is entitled to
bail under this article shall be permitted one bail for the same offense as
a matter of right. Subsequent bails shall be in the discretion of the court.
17-7-20 -- 17-7-34 [Courts of Inquiry: Commitment Hearings]
17-7-20.
Any judge of a superior or state court, judge of the probate court, magistrate,
or officer of a municipality who has the criminal jurisdiction of a magistrate
may hold a court of inquiry to examine into an accusation against a person legally
arrested and brought before him or her. The time and place of the inquiry shall
be determined by such judicial officer. Should the county in which the offense
is alleged to have been committed be a member of a regional jail authority created
under Article 5 of Chapter 4 of Title 42, the 'Regional Jail Authorities Act,'
the judge may order the court of inquiry to be conducted alternatively in the
county in which the offense is alleged to have been committed or in facilities
available at the regional jail or by audio-visual communication between the
two locations and between the accused, the court, the attorneys, and the witnesses.
17-7-21.
The judicial officer before whom the accused is brought may associate with him,
in the investigation, one or more magistrates, in which event a majority shall
decide all questions. If there are only two presiding, the original officer
shall determine all the questions where the court is not in agreement.
17-7-22.
Any mayor, recorder, or other proper officer presiding in any court of a municipal
corporation shall have authority to bind over or commit to jail offenders against
any criminal law whenever, in the course of an investigation before such officer,
a proper case therefor is made out by the evidence.
17-7-23.
(a) The duty of a court of inquiry is simply to determine whether there is sufficient
reason to suspect the guilt of the accused and to require him to appear and
answer before the court competent to try him. Whenever such probable cause exists,
it is the duty of the court to commit.
(b) Any court, other than a superior court or a state court, to which any charge
of a violation of Code Section 16-11-126 or Code Section 16-11-128 is referred
for the determination required by this Code section shall thereafter have and
exercise only the jurisdiction of a court of inquiry with respect to the charge
and with respect to any other criminal violation arising from the transaction
on which the charge was based and shall not thereafter be competent to try the
accused for the charge or for any other criminal violation arising from the
transaction on which the charge was based, irrespective of the jurisdiction
that the court otherwise would have under any other law.
17-7-24.
A reasonable time shall be given to the defendant and prosecutor for the preparation
of the case. In no event shall the defendant be forced to attend the hearing
without the aid of counsel if there is a reasonable probability of his securing
counsel without too great delay. Where the hearing is postponed to a future
day at the instance of either party or the court, it shall not be necessary
to commit the defendant to jail pending the hearing; but he shall have the right
to give bail for appearance at the hearing before the court of inquiry if the
offense is bailable under the authority of the court.
17-7-25.
A court of inquiry shall have the same power to compel the attendance of witnesses
as in other criminal cases, as set forth in and subject to all of the provisions
of Chapter 10 of Title 24, at any location where the court shall conduct a hearing,
provided that notice is given at least 24 hours prior to the hearing. A court
of inquiry may order the arrest of witnesses if required to compel their attendance.
17-7-26.
In the event of a commitment of the accused person, the court, in its discretion,
may require the witnesses, on behalf of the state or others, to give suitable
bonds to secure their appearance at court, with or without sureties, as the
circumstances seem to demand.
17-7-27.
The sheriffs and constables shall accept bond in such reasonable amount as may
be just and fair to secure the appearance of any witness to attend the courts,
provided the sureties tendered and offered on the bond are approved by a sheriff
of any county.
17-7-28.
The court of inquiry shall hear all legal evidence submitted by either party.
If the defendant wishes to testify and announces in open court before the court
of inquiry his intention to do so, he may testify in his own behalf. If he so
elects, he shall be sworn as any other witness and may be examined and cross-examined
as any other witness, except that no evidence of general bad character or prior
convictions shall be admissible unless and until the defendant first puts his
character into issue. The failure of a defendant to testify shall create no
presumption against him, and no comment may be made because of such failure.
17-7-29.
A court of inquiry may commit the defendant for a different offense than that
stated in the warrant if the evidence requires it.
17-7-30.
The following form, or one in substance the same, shall be deemed to be a sufficient
commitment:
Georgia, __________ County.
_____________________ (name of the defendant) having been arrested
on a warrant for the offense of ______________ and brought before me, after
hearing evidence it is ordered that he be committed for trial for the offense
of ______________. The jailer of said county (or any other county, if necessary)
is required to receive and safely keep him until discharged by due process of
law.
Witness my hand and seal, this ______ day of ______________, ____.
_______________________
Judicial officer (Seal)
17-7-31.
Whenever any judicial officer sitting as a court of inquiry binds over a defendant
to appear at an appropriate court to answer any charge, it shall be the duty
of the judicial officer to write on the warrant the names of each witness for
the state who appeared at the commitment hearing.
17-7-32.
The commitment form shall be delivered to the officer in whose charge the accused
person is placed, and the officer shall deliver it with the accused person to
the sheriff or the other person in charge of the jail. A memorandum of the commitment
shall be entered on the warrant by the judicial officer. The warrant and all
other papers shall be forwarded to the clerk of the appropriate court having
jurisdiction over the offense for delivery to the prosecuting attorney.
17-7-33.
Reserved.
17-7-34.
No defendant shall be discharged on a writ of habeas corpus because of informality
in the commitment or in the proceedings prior thereto, provided there has been
substantial compliance with this article.